One section of the OPEN Government act has already passed the Senate as a stand-alone bill. That law would attempt to eliminate “stealth exemptions” to FOIA by requiring Congress to explicitly identify any statues that would limit the public’s right to access information under FOIA. [Lucy] Dalglish, explains that as the law stands now, “I could spend a year going through the federal code and not know what’s covered. This gives us a warning: If a bill is proposed that limits FOIA, it’s not going to fly under our radar.”

It’s also a problem in the UK, where section 44 of the Freedom of Information Act 2000 prohibits any disclosure that “would breach another enactment or would constitute a contempt of court”. It’s an absolute exemption that can’t be overridden by a public interest test.

Unlike the Americans, British lawyers, activists and journalists don’t have to trawl the statute books to find out the true limitations of their FOIA: The Government has done it for them. According to a review (PDF) published earlier this summer by the Department of Constitutional Affairs, there are 210 British laws that bar disclosure under FOIA.

The DCA went to all this trouble for a pretty positive reason: They were looking for secrecy laws that might be worth repealing under Section 75 of the Freedom of Information Act.

The Americans should take a look at Section 75 of the UK FOIA, which allows the Secretary of State for Constitutional Affairs to Order laws that conflict with government openness. Unfortunatly, its first use only rendered eight secrecy provisions inoperative.

A further 40 have been earmarked to be removed, and another 19 will have had sunset clauses added. (Oh goody. This means you will now be able to get information collected under Schedule 2, paragraph 7 of the Energy Act 1976 after 1985.)

The DCA decided that the remaining 111 secrecy provisions should remain untouched.

The UK, on the other hand, should look at the provisions of the OPEN Government bill that require notification of any “stealth exemption” to FOIA carved out as a result of secrecy provisions in new legislation.

Why? Seven new restrictions on government openness were passed between the day the Freedom of Information Act was passed on 30 November 2000 and the day it came into force on 1 January 2005. They probably won’t be the last. Journalists and other people who care about openness in British government need to keep an eye out for the creeping narrowing of the Freedom of Information Act via “stealth exemptions” injected via Section 44.